When defamation goes online

From the Spring 2008 issue of The News Media & The Law, page 37.

The Internet may be changing the way reporters gather news as bloggers find their niche and newspapers package online stories, but there appears to be at least one area where the Internet is not triggering a massive transformation in the industry — defamation laws.

Cases over the last decade or so have shown the medium at issue is not a significant factor in determining the extent to which publishers are protected from defamation claims.

The U.S. Court of Appeals in New Orleans (5th Cir.) ruled in December 2007 that the “single publication rule,” which holds that the statute of limitations for libel begins when a statement is first published, applies to publications on the Internet as well.

This was the most recent case in a string of cases that have addressed this issue. State courts in Georgia, New York, Kentucky and California as well as a federal court in New York have all applied the single publication rule to online defamation cases.

Paul C. Watler, an attorney who represented The Dallas-Morning News in the Fifth Circuit case, said the decision has helped spare Web publishers the hassle of dealing with stale lawsuits.

“We would see a greater proliferation of libel cases against Internet content providers,” Watler said. “There are all kinds of Web content out there that people are able to locate through search engines. Something that was written in 1995 would be subject to a lawsuit in 2008. That’s the sort of lack of repose that presents a social and legal risk for Web publishers that, at the end of the day, would chill the free speech on the Internet.”

The rule dates back to a 1948 New York case Gregoire v. G.P. Putnam’s Sons, which noted that the advent of mass publication should encourage courts to reexamine how defamation claims are considered and how publishers are protected.

The purpose of the single-publication rule is to safeguard publishers against endless liability because the statute of limitations on bringing libel suits — typically one or two years — is no longer triggered each time a statement is “published” in print or online, but is measured by the initial publication. Plaintiffs must either sue within that initial period or forfeit their rights.

Many states have adopted the single-publication rule in lieu of the continuous (or multiple) publication rule derived from English Common Law.

This rule states that every sale and distribution of a publication is considered a separate publication of statements, so a plaintiff could sue for defamation over any of them.

As publishers increasingly migrate to the Internet, the logistics surrounding how to apply libel laws have become blurry. Web site “hits” are replacing traditional “sales” and hard copy “distribution” is evolving to “re-posting” information on a different site or at a later date.

What was once a bright line between publishing information and distributing it has now developed into a continuous cycle. So it has been left up to the courts to decide where this cycle begins and ends.

Web-based interpretations of a print-based law

The Fifth Circuit decision, Nationwide Biweekly Administration, Inc. v. Belo Corp. & The Dallas Morning-News, is one of the first rulings by a federal court on this issue. The unanimous three-judge panel upheld the district court’s decision to grant the paper’s motion that Nationwide’s case should be dismissed since the state’s one-year statute of limitations for libel claims had elapsed.

The appeal was a result of a defamation claim that Nationwide brought against Belo Corp., the parent company of the Morning-News, for an article the newspaper published in both its print and online editions concerning Nationwide’s questionable business procedures.

“When a publisher continues to make an allegedly defamatory book available from its stock, courts have held that action does not constitute republication,” Judge Harold R. DeMoss wrote. “Likewise, the continued availability of an article on a Web site should not result in republication, despite the Web site’s ability to remove it.”

Nationwide argued that “republication” occurs each time a viewer accesses the article on the publisher’s Web site, thus triggering another statute of limitations period.

The article in question was only posted once on the Morning-News’ Web site and no subsequent additions, updates or reposting of the article ensued.

Additional “hits” from individual viewers does not constitute republication, DeMoss wrote.

Setting the groundwork

Two cases — one in New York and one in Georgia — have helped lay the foundation for the online application of traditional publication rules.

The New York Court of Appeals, the state’s highest court, applied the single-publication rule in 1998 to a report on a state Web site.

Frank K. Walsh, the lawyer representing the state, said applying conventional print media libel laws to the Internet makes sense.

“It was a consistent application for a well-established sound rule to a new form of communication and media,” Walsh said. “There really wasn’t any reason to go a different way. And, quite frankly, a contrary rule would have been disastrous.”

In Firth v. State, plaintiff George Firth was a director of the Division of Law Enforcement for the state Department of Environmental Conservation.

The Office of the State Inspector General issued a report, “The Best Bang for Their Buck,” which criticized Firth’s managerial skills and the way he acquired weapons, which was one of his duties in his position.

Firth alleged that the report, published in 1996 on the state’s Web site, defamed him, and that the one-year statute of limitations restarts each time someone accesses the site thereby rendering his claim timely. The court disagreed, however, and employed much the same reasoning that the Nationwide court would adopt nearly a decade later.

The New York Court of Appeals decision held that the Internet’s capability of spreading information to millions of viewers creates a special need to apply the single-publication rule.

“A multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants,” wrote Judge Howard Levine for the unanimous court.

A 2004 Georgia Court of Appeals case echoed the New York case. The unanimous three-judge panel employed similar language as both the Nationwide and Firth courts did, stressing that the Internet must remain as unhindered as possible.

“Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet, which is, of course, its greatest beneficial promise,” Georgia Judge G. Allen Blackburn wrote.

Peter C. Canfield, the lawyer who represented the Journal-Constitution in this suit and for the past 20 years, said this case didn’t break any new ground in terms of online defamation, but it’s important for the consistency the court showed.

“It was an early indication that courts would recognize, as they should, that the Internet should not change a rule that has served well for centuries,” Canfield said. “The fact that you have a publication on the Internet doesn’t affect the application of the single-publication rule.”

An exception to the new rule

When the alleged defamatory material isn’t widely disseminated to the public, the single-publication rule takes a backseat to the traditional continuous publication rule, according to a Tennessee appeals court case from 1998.

In Swafford v. Memphis Individual Practice Association, the three-judge panel unanimously ruled that the single-publication rule doesn’t apply to online databases that only a select audience has access to.

“Unlike the mass publication of a book, magazine, or television commercial, it is unlikely that more than a handful of individuals or entities would gain access to information stored in the data base,” wrote Judge Holly Lillard. “The justification for the single-publication rule, a vast multiplicity of lawsuits resulting from a mass publication, is simply not present here.”

Media lawyers agree that this case, and other similar ones, won’t hamper the protection, which Web publishers that do target a larger audience have been routinely receiving from the courts.

Reeling around republication

Exactly what consists of republication will undoubtedly be a major issue in the coming years, according to media lawyers.

Alan Pierce, the attorney who represented Firth in Firth v. State, said he thought republication was a major issue in the case but said the highest court didn’t want to take on more than what was already on the table, and the intermediate court didn’t address it.

“Most courts are a little reluctant to go out and decide every case,” Pierce said. “I think the courts try to balance formulating rules that are not so broad that they don’t leave any room for the resolution of the next case that comes along but that is hopefully good enough that the lower courts can apply the rule to the next case. It’s a sort of balancing act.”

The state’s lawyer Walsh said the focus should be on the content, not the way the information is disseminated. Just like a book in a library may be moved to a different shelf, an article online could be moved to a different Web site, and yet still neither case would count as republication, he said.

He said a new statute of limitations period arising from a republication should begin, though, when the publisher takes “an affirmative step to put it out in front of a new audience,” like when a hardback book is later produced in paperback. If the state in the Firth case had published the report on an outside Web site, such as a local school library, that would have triggered the court to examine the republication issue, he said.

Even though the Nationwide case didn’t address what would happen if the allegedly defamatory article was altered because the facts didn’t warrant it, Watler said he could envision scenarios where the republication issue might get messy depending on how journalists take advantage of the Internet.

“When bloggers or reporters are reporting developments on a particular topic of public concern, they often give readers more context by repeating what was previously published,” Watler said. “It’s important that publishers have protection against limitations never being tolled in these kinds of circumstances.”

Brian Calhoun, a media lawyer at Sedgwick, Detert, Moran & Arnold in Dallas, echoed these thoughts. Calhoun, who has studied single-publication rule cases in both Texas and California, where he used to practice, said the big issue will be how the courts handle Web sites that alter the text of information to republish.

“I don’t think courts have addressed whether or not an Internet publisher who changes the wording and diction of the claimed defamatory statement, whether or not that falls within the single-publication rule,” Calhoun said.

What lies ahead?

Predicting how the courts will grapple with future online defamation cases will be somewhat of a waiting game — waiting for technology to evolve and then for situations to arise that compel the courts to address the single-publication rule in, presumably, a slightly different online environment yet again.

Calhoun said courts will look more at how information is spread on the Internet, rather than applying traditional journalism law standards.

“Cases are going to start looking at getting away from newspaper publications and focusing on different sites on the Internet and how those publications are disseminated,” Calhoun said. “You’ve seen a lot of different technology applications and I think it’s going to be a moving target for the courts and it’s going to continue to evolve.”

Watler said it’s important that courts are maintaining the basic free speech principles inherent to traditional journalism — no matter how much the Internet changes the industry.

“This Nationwide case is an example of a trend we’re seeing in the courts that will have considerable impact over time,” Watler said. “It’s a trend in favor of applying established print free speech concepts to Internet communications where they fit.”

He didn’t hesitate, though, to realize established journalism may someday soon call the Internet its primary home, and may be something entirely different than what has traditionally been presented.

“I think a continuation of free speech principles to the Internet is a positive development,” Watler said, “both for Internet commerce as well as the Internet being the future platform for journalism or whatever emerges to replace traditional journalism.”